UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


LECTURE 


AMERICAN 


CORRESPONDENCE  SCHOOL 


OF  LAW 


LAW  OF  CONTRACTS 


BY 

JOHN  D.  LAWSON,  LL.  D. 

if 

Dean  of    the  Law  Department  of   the  University  of   Missouri. 
Author  of  "Principles  of  the  American  Law  of  Contracts." 


AMERICAN   CORRESPONDENCE    SCHOOL   OF   LAW 
CHICAGO,  U.  S.  A. 


T 


COPYRIGHT  1903 

BY 

AMERICAN   CORRESPONDENCE   SCHOOL  OF  LAW 
CHICAGO 


I 

•"-. 


BIOGRAPHICAL  SKETCH 

OF 
JOHN  DAVISON  LAWSON. 

John  Davison  Lawson,  Professor  of  Contract  and  Interna- 
tional Law  and  Dean  of  the  Law  Department  of  the  University 
of  Missouri,  was  born  and  received  his  Academic  and  legal  edu- 
cation in  Canada.  In  1876  he  began  the  practice  of  law  in 
Saint  Louis.  For  several  years  he  was  Editor  of  the  Central 
Law  Journal,  which  continues  today  one  of  the  leading  period- 
icals of  general  circulation  in  the  country. 

He  has  been  a  Judge  of  a  Civil  Court  and  President  of  the 
Bar  Association  of  Missouri.  Since  1903  he  has  been  Dean  of 
the  Law  Department  of  the  State  University.  He  is  widely 
known  as  a  Legal  Author.  His  works  on  Expert  and  Opinion 
Evidence ;  Presumptive  Evidence ;  Rights,  Remedies  and  Prac- 
tice, and  Usages  and  Customs  are  well  known  to  the  Profession 
generally  and  his  Law  of  Contracts  and  Law  of  Bailments  are 
used  as  text-books  in  a  very  large  number  of  the  Law  Schools 
in  the  United  States. 


LAW  OF  CONTRACTS 


Part  I. 
Making  of  Contract. 

A  CONTRACT  is  an  Agreement,  enforceable  by 
law,  between  two  or  more  parties,  to  do,  or  not  to  do,  a 
certain  act  or  thing. 

An  AGREEMENT  is  where  two  or  more  persons 
are  of  the  same  mind  and  intention  concerning  the  sub- 
ject matter. 

Though  the  words  CONTRACT  and  AGREE- 
MENT are  frequently  used  as  meaning  the  same  thing, 
I  propose  here  to  speak  of  CONTRACT  as  an  agree- 
ment enforceable  by  law,  i.  e.r  the  agreement  which 
Courts  will  recognize  and  which  will  give  legal  rights  to 
the  parties  concerned.  Hence  a  CONTRACT  is  com- 
posed of  agreement  plus  obligation, — by  obligation 
being  meant  the  duty  imposed  by  the  law  upon  the  par- 
ties to  act  as  they  have  agreed. 

This  .Obligation  depends  on  form,  consideration, 
capacity,  consent,  and  legality ;  for  if  one  of  these  neces- 
sary elements  be  absent  there  is  no  contract.  There- 
fore, it  is  proper  to  say  that  the  elements  of  a  contract 
are  (1)  Agreement,  (2)  Form  and  Consideration,  (3) 
Capacity,  (4)  Consent,  and  (5)  Legality. 

Agreement. 

Agreement  is  always  the  result  of  offer  and  accept- 
ance. An  offer  is  the  expression  of  a  person's  willing- 
ness to  become,  according  to  the  terms  expressed,  a 
party  to  an  agreement.  An  offer  in  a  contract  may 
assume  two  forms.  It  may  be— 


8  American  Correspondence  School  of  Law. 

( 1 )  The  offer  of  a  promise :  as  for  example,  the  offer 
of  a  reward  for  doing  a  certain  act. 

(2)  The  offer  of  an  act:  as  for  example,  serving  one 
in  order  to  get  wages. 

Acceptance  on  the  other  hand  is  the  expression  of  a 
person's  willingness  to  do,  or  to  abstain  from  doing, 
that  which  the  person  making  the  offer  requires  to  be 
done  or  left  undone,  according  to  the  terms  set  forth  in 
the  offer.  Acceptance  may  assume  three  forms;  viz.— 

(a)  Simple  assent,  either  written  or  verbal. 

(b)  The  giving  of  a  promise:  as  for  example,  prom- 
ising wages  for  services  offered. 

(c)  The  doing  of  an  act:  as  for  example,  finding  a 
lost  dog,  for  the  recovery  of  which  the  owner  offers  a 
reward. 

The  Offer  must  be  communicated  to  the  party  to 
whom  it  is  made  and  he  on  the  other  hand  must  com- 
municate his  acceptance  to  the  offerer.  An  offer  or  an 
acceptance,  or  both,  may  be  communicated,— 

(1)  By  writing,  or  word  of  mouth,  which  constitute 
express  offer  or  acceptance. 

(2)  By  the  conduct  of  the  parties  which  constitutes 
implied  offer  or  acceptance. 

(3)  Or  partly  by  the  one  and  partly  by  the  other. 
An  offer  which  is  not  communicated  to  the  other  party 

is  of  no  legal  value.  A  man  cannot  be  said  to  accept 
an  offer  of  which  he  is  in  ignorance,  nor  can  he  be  forced 
to  accept  and  pay  for  services  which  he  did  not  know 
were  being  rendered  and  which,  therefore,  he  could  not 
decline.  As  very  well  put  by  an  old  Judge,  "I  clean 
your  property  without  your  knowledge.  Have  I  then 
a  claim  on  you  for  payment?  How  can  you  help  it? 
One  cleans  another's  shoes,  what  can  the  other  do  but 
put  them  on?  Is  that  evidence  of  a  contract  to  pay 


Law  of  Contracts.  9 

for  the  cleaning?"  In  the  same  way  a  mental  accep- 
tance not  communicated  by  words  or  conduct  is  in  the 
eye  of  the  law  no  acceptance. 

Contracts  made  through  the  post  present  some  pecu- 
liar features.  An  offer  made  through  the  post  is  not 
communicated  till  it  is  actually  received  and  read,  but 
an  acceptance  is  communicated  to  the  writer  of  the  letter 
when  the  accepting  letter  is  dropped  into  the  post  office. 

To  the  rule  that  acceptance  must  be  communicated  to 
the  offerer  there  is  one  exception,  viz:  Where  the 
offerer  by  the  very  terms  of  his  offer  has  intimated  that 
he  wants  the  thing  done  and  does  not  require  the  person 
to  whom  the  offer  is  made  to  inform  him  first  that  he 
will  do  it.  If  I  advertise  that  I  will  give  anyone  $5.00 
to  find  and  restore  my  dog,  I  do  not  expect  people  to 
notify  me  that  they  intend  to  hold  me  to  my  offer,  and 
the  agreement  is  complete  when  the  dog  is  found  and 
restored.  So  if  I  send  to  a  merchant  asking  him  to  de- 
liver me  certain  goods,  he  need  not  communicate  his 
acceptance  to  me;  all  he  is  required  to  do  to  make  the 
agreement  complete  is  to  send  the  goods. 

The  offer  must  refer  to  legal  relations  and  must  be 
of  a  serious  character.  Idle  offers  in  jest  or  social  en- 
gagements cannot  be  made  the  foundation  of  an  agree- 
ment. So  we  must  distinguish  between  real  offers  and 
mere  requests  that  the  public  will  come  forward  with 
offers  to  the  person  making  the  request.  Thus,  if  I 
offer  to  sell  A  a  particular  thing  or  to  reward  anyone 
who  will  find  my  dog,  there  we  have  a  definite  proposal, 
but  if  I  by  advertisement  or  by  circular  state  that  I 
have  one  thousand  cords  of  wool  to  sell  at  $4.00  a  cord, 
this  is  never  construed  by  the  Courts  as  amounting  to 
an  offer  which  can  be  accepted  by  anyone  who  pleases, 
but  is  considered  a  mere  invitation  on  my  part  for  others 


10  American  Correspondence  School  of  Law. 

to  make  offers  to  me,  which  I  may  accept  or  reject  at 
my  pleasure. 

The  offer  may  be  accepted  only  by  the  person  to 
whom  it  is  made.  If  an  offer  is  made  to  A,  B  cannot 
get  any  rights  by  accepting  it.  General  offers  made  to 
the  public,  as  for  example,  offers  of  reward,  may,  how- 
ever, be  accepted  by  anyone. 

The  acceptor  is  bound  only  by  the  terms  of  the  offer. 
If  an  offer,  on  the  face  of  it,  contains  the  terms  of  a 
complete  contract,  the  acceptor  will  not  be  bound  by 
any  other  terms  intended  to  be  included  in  it,  unless  he 
had  knowledge  of  such  other  terms,  or  his  attention  was 
directed  to  them,  and  he  was  in  a  position  to  ascertain 
their  nature.  The  principle  is  best  illustrated  by  the 
cases  decided  on  the  validity  of  conditions  printed  on 
railroad  tickets  where  it  is  decided  that  a  company,  hav- 
ing sold  a  ticket  which  contains  on  the  face  of  it  only 
the  name  of  the  stations  of  departure  and  arrival,  with- 
out words  calling  attention  to  the  conditions  printed  on 
the  back,  is  liable  to  the  full  amount  for  the  loss  of  the 
plaintiff's  baggage  -through  the  fault  of  the  company's 
servants,  although  conditions  on  the  back  of  the  ticket 
restricted  the  company's  liability. 

The  acceptance  must  be  absolute,  and  identical  with 
the  terms  of  the  offer.  The  acceptance  must  be  the  ac- 
ceptance of  the  thing  proposed  and  must  not  introduce 
any  new  conditions  or  terms.  It  must  be  absolute  and 
unqualified.  If  new  terms  or  conditions  are  intro- 
duced, the  acceptance  becomes  a  fresh  offer,  which  takes 
the  place  of  the  original  offer.  W  offered  some  land 
to  H  for  $1,000.  H  replied  that  he  would  give  $950. 
W  refused.  Then  H  said  that  he  would  give  $1,000, 
and  W  refused.  In  an  action  by  H  against  W  for 
specific  performance,  it  was  held  that  H's  acceptance  for 


Law  of  Contracts.  11 

$950  constituted  a  refusal  of  Ws  offer,  and  amounted 
to  a  counter-proposal  and  that,  under  those  circum- 
stances, W  could  not  be  compelled  to  stand  by  his  orig- 
inal offer. 

So  wherever  there  is  a  condition  in  the  offer  that  con- 
dition must  be  performed  by  the  acceptor  or  there  is  no 
agreement.  Thus,  in  a  leading  case  in  the  United 
States  Supreme  Court,  A  wrote  to  B  offering  to  buy 
some  flour  of  him  and  requiring  him  to  reply  by  the 
cart  which  took  the  offer.  B,  thinking  that  he  would 
save  time,  sent  his  answer  by  mail.  It  was  held  that  A 
was  entitled  to  refuse  the  flour  because  there  had  been 
no  agreement,  as  B  had  not  performed  one  of  the  condi- 
tions of  the  offer. 

An  offer  unaccepted  creates  no  rights  and  hence  may 
be  revoked  at  any  time  before  acceptance  is  communi- 
cated. It  may  also  be  revoked  by  the  expiration  of  the 
time  which  it  prescribes  for  acceptance  or  by  the  expira- 
tion of  a  reasonable  time,  or  by  the  death  of  either  party 
before  acceptance. 

II-IIL 

Form  and  Consideration. 

The  evidence  of  the  intention  of  parties  to  a  contract 
is  supplied  by  offer  on  the  one  side  and  acceptance  on 
the  other,  but  intention  to  make  an  agreement  is  not 
sufficient  of  itself  to  make  a  binding  contract.  Ameri- 
can Law  requires  further  evidence  of  this  intention  and 
this  evidence  is  supplied  in  two  ways,  viz:  by  Form  or 
by  Consideration.  The  only  Formal  Contract  is  the 
contract  under  seal,  but  if  the  contract  be  not  under  seal 
then  it  requires  a  consideration  to  make  it  binding.1 

Contracts  not  under  seal  are  called  simple  contracts 
whether  they  be  by  word  of  mouth  or  in  writing.  At 


12  American  Correspondence  School  of  Law. 

Common  Law  all  simple  contracts  were  good  by  word 
of  mouth,  with  the  single  exception  of  a  Bill  of  Ex- 
change, but  by  statutes  beginning  in  the  year  1677 
many  kinds  of  agreements  are  required  to  be  in  writing. 
The  Statute  of  Frauds  is  the  most  important  legislation 
of  this  kind.  It  was  passed  in  the  reign  of  Charles  II 
and  has  been  copied  into  the  statutes  of  nearly  every 
State  in  the  Union.  This  statute  by  its  most  important 
sections,  Xo.  4  and  Xo.  7,  enacts  that  XO  ACTIOX 
SHALL  BE  BROUGHT,  unless  the  agreement  is  in 
writing  or  there  is  a  note  or  memorandum  of  the  agree- 
ment in  writing  signed  by  the  party  sued,  in  the  follow- 
ing six  cases:  (a)  A  promise  by  an  executor  to  answer 
damages  out  of  his  own  estate;  (b)  A  promise  to  answer 
for  the  debt,  default  or  miscarriage  of  another;  (c)  An 
agreement  made  in  consideration  of  marriage;  (d)  A 
contract  for  the  sale  of  land,  or  any  interest  in  or  con- 
cerning land;  (e)  An  agreement  not  to  be  performed 
within  a  year  from  its  making;  (f)  A  contract  for  the 
sale  of  any  goods,  wares  or  merchandise  for  the  price  of 
$50.00  or  upwards. 

Consideration  is  shortly  defined  as  a  benefit  to  the 
promisor  or  a  detriment  to  the  promisee.  It  need  not 
be  money  or  even  money  value,  it  being  sufficient  that 
the  promisor  does  or  promises  to  do  something  which  he 
has  a  right  to  do.  All  simple  contracts,  whether  they 
are  by  word  of  mouth  or  in  writing,  require  considera- 
tion to  support  them  and  if  they  do  not  have  it  the 
agreement  is  not  enforceable  in  the  Courts. 

The  adequacy  of  the  consideration  is  immaterial.  So 
long  as  the  party  gets  what  he  contracts  for,  the  Courts 
will  not  examine  into  the  transaction  in  order  to  find  out 
what  its  value  is  to  him  or  whether  it  is  at  all  proportion- 
ate to  what  he  promised  in  return.  They  will  not  ask 


Law  of  Contracts.  18 

nor  will  they  permit  the  promisor  to  litigate  the  ques- 
tion whether  the  consideration  benefits  him  or  a  third 
person  or  is  of  any  substantial  value  to  anyone.  To  do 
otherwise  it  is  well  said  would  be  "the  law  making  the 
bargain,  instead  of  leaving  the  parties  to  make  it."  The 
slightest  consideration  then  is  sufficient  to  support  the 
most  onerous  obligation. 

In  a  well  known  case  F  asked  permission  of  B  to 
weigh  his  boilers,  which  B  granted,  and  in  consideration 
of  which  F  promised  to  return  them  in  as  good  condi- 
tion as  he  received  them.  He  did  not  do  so  and  B  sued 
him.  F  contended  that  the  permission  to  weigh  the 
boilers  was  neither  a  detriment  to  B  or  benefit  to  F  and 
was,  therefore,  not  a  consideration  to  support  his  prom- 
ise. But  the  Court  said,  "The  defendant  had  some  rea- 
son for  wishing  to  weigh  the  boilers;  and  he  could  only 
do  so  by  obtaining  permission  from  the  plaintiff,  which 
permission  he  did  obtain  by  promising  to  return  them 
in  good  condition.  We  need  not  inquire  what  benefit 
he  expected  to  receive." 

A  consideration  is  either  executory  or  executed.  An 
executed  consideration  is  something  done.  An  executed 
consideration  is  something  promised.  A,  for  example, 
pays  B  $50.00  for  a  barrel  of  sugar,  which  B  is  to  de- 
liver. Here  A's  consideration  for  B's  promise  to  de- 
liver the  sugar  is  executed.  But  if  A  says  to  B,  "I  will 
pay  you  $5.00  when  you  deliver  the  sugar,"  here  A's 
consideration  is  executory. 

A  contract  must  be  certain,  legal,  and  possible  of  per- 
formance. It  must  impose  on  the  promisor  some  obli- 
gation. A  promise  to  do  something  which  the  party  is 
already  bound  to  do,  either  by  law  or  contract,  is  no  con- 
sideration. If  a  Public  Officer  is  obliged  by  law  to  fur- 
nish a  copy  of  a  document  to  any  citizen  applying  for 


14  American  Correspondence  School  of  Law. 

it  for  $1.00,  a  promise  to  pay  him  more  than  the  $1.00 
is  founded  on  no  consideration,  for  the  promisor  receives 
nothing  in  return  for  his  promise.  So  if  a  man  refuses 
to  carry  out  a  contract  he  has  made  with  another  unless 
the  other  will  pay  him  a  higher  sum  than  was  promised, 
the  new  promise  to  pay  more  has  no  consideration  to 
support  it  and  is  unenforceable. 

A  past  consideration,  that  is  the  giving  as  considera- 
tion for  a  contract  something  which  has  been  done  before 
the  contract  was  entered  into,  cannot  as  a  general  rule 
support  the  contract.  If  A  says  to  B,  I  will  pay  you 
$5.00  a  week  if  you  will  board  my  brother  at  your  house 
and  B  furnishes  the  board,  this  furnishing  of  board  is 
a  good  consideration  for  the  promise  to  pay  $5.00  a 
week.  But  if  B  without  the  request  of  A  furnished  the 
board  to  the  brother,  a  subsequent  promise  by  A,  "I 
will  pay  you  for  boarding  my  brother,"  would  be 
founded  on  a  past  consideration  and  would  not  be  en- 
forceable in  the  courts. 

III. 

Capacity. 

There  are  certain  persons  whom  the  law  regards  either 
wholly  or  in  part  as  incapable  of  contracting.  This 
incapacity  may  arise  through  the  following  causes:  (a) 
political  status;  (b)  artificiality  of  existence;  (c)  in- 
fancy; (d)  marriage,  and  (e)  insanity  or  drunkenness. 

(a)  A  sovereign  state  or  government  may  make  con- 
tracts and  sue  on  them  but  it  cannot  be  sued  without  its 
consent.  Foreign  States,  Sovereigns  and  their  repre- 
sentatives, such  as  ambassadors  and  ministers,  cannot 
be  sued  in  our  Courts  unless  they  submit  themselves  to 
their  jurisdiction,  but  they  may  sue  upon  contracts  if 


Law  of  Contracts.  15 

they  choose.  An  alien  enemy,  by  which  is  meant  a  per- 
son who  is  the  subject  of  a  nation  with  which  we  are  at 
war,  cannot  make  a  contract  with  one  of  our  citizens  or 
bring  an  action  on  a  contract  in  our  courts  while  war 
is  proceeding,  but  their  rights  which  were  in  existence 
prior  to  the  war  are  only  suspended  during  the  hostilities 
and  can  be  enforced  when  the  war  is  ended. 

A  convict  can  neither  contract  nor  sue  upon  a  pre- 
vious contract  during  the  continuance  of  his  conviction. 

(b)  A  corporation  is  an  artificial  person  having  a 
legal  entity  created  by  statute.     This  legal  entity  is 
entirely  apart  from  the  members  who  compose  it  and 
its  rights  and  liabilities  differ  from  the  individual  rights 
and  liabilities  of  its  members.    A  corporation  has  a  lim- 
ited capacity  to  contract.    It  can  only  make  those  con- 
tracts which  by  its  charter  it  is  permitted  to  make,  or 
such  as  are  fairly  incidental  to  the  powers  granted  to  it. 
All  contracts  made  beyond  its  capacity  are  said  to  be 
ultra  vires  and  are  void.  Being  a  corporate  body  it  can- 
not  contract   personally   and  therefore  must   contract 
through  an  agent.    It  must  also  contract  under  its  seal, 
except  in  matters  of  trifling  importance,  daily  necessity, 
or  great  emergency. 

(c)  An  infant  in  law  means  a  person  under  twenty- 
one  years  of  age.    At  common  law  all  contracts  made  by 
an  infant  are  voidable  at  his  option.    The  word  voidable 
in  this  connection  may  mean  one  of  two  things,  viz.: 
valid  till  repudiated,  or  invalid  till  confirmed  after  full 
age.    The  class  of  contracts  which  are  valid  till  repudi- 
ated consist  of  agreements  involving  a  continuing  obli- 
gation, as  for  example  a  partnership  or  a  lease.    These 
must  be  repudiated  within  a  reasonable  time  after  com- 
ing of  age  or  they  will  bind  the  infant.    But  contracts 
for  isolated  actions,  as  agreements  to  buy  property  or  to 


16  American  Correspondence  School  of  Law. 

pay  for  services  or  goods  or  the  like,  are  not  binding 
unless  they  are  ratified  after  coming  of  age.  To  the 
general  rule  of  non-liability  of  an  infant  on  his  contract 
there  is  one  notable  exception,  namely,  contracts  for 
necessaries.  These  contracts  the  infant  could  never  and 
cannot  now  repudiate.  For  such  necessaries  supplied 
to  him  he  must  pay  a  reasonable  price.  As  to  what  are 
"necessaries"  in  any  particular  case,  the  Court  deter- 
mines in  the  first  place,  having  regard  to  the  circum- 
stances, whether  the  goods  can  be  reasonably  taken  to 
be  necessaries.  If  they  cannot,  the  jury  is  not  asked 
the  question.  If  the  Court,  however,  thinks  the  ques- 
tion open,  the  Jury  is  asked  whether  they  are  in  fact 
necessaries. 

(d)  At   common   law   a   married   woman   had   few 
rights.     Her  marriage  operated  as  a  gift  to  the  hus- 
band of  all  her  personal  and  real  property  and  the  hus- 
band became  liable  for  all  her  anti-nuptial  contracts 
and  debts.     Xo  contract  made  by  her  was  binding  on 
her   (with  a  few  exceptions)  ;  but  by  modern  statutes 
in  most  of  the  States  a  married  woman  is  now  given 
power  to  contract  and  to  bind  herself  to  answer  for  those 
contracts  out  of  her  separate  estate.    As  the  husband  is 
bound  to  supply  his  wife  with  necessaries,  he  is  generally 
liable  for  contracts  made  by  her  for  such  things  for  the 
household  unless  he  can  show  that  he  had*  sufficiently 
supplied  her  with  such  necessaries. 

(e)  Lunatics  and  drunkards  are  not  liable  on  their 
contracts.    A  promise  made  by  a  lunatic  or  a  drunkard 
if  he  is  so  incapable  as  not  to  know  what  he  is  about  can 
be  repudiated  by  him,  but  not  by  the  other  party.    The 
contract  is  voidable  only  and  may  be  enforced  by  the 
guardian  of  the  lunatic  or  by  the  drunkard  when  he 
becomes  sober.     Where,  however,  necessaries  are  sold 


Law  of  Contracts.  17 

and  delivered  to  a  person  who  by  reason  of  mental  in- 
capacity or  drunkenness  is  incompetent  to  contract,  he 
must  pay  a  reasonable  price  therefor. 

IV. 

Consent. 

There  are  circumstances  which  invalidate  an  agree- 
ment on  the  ground  that  there  has  been  no  real  consent, 
viz.:  (a)  Mistake,  (b)  Fraud,  (c)  Misrepresentation, 
(d)  Duress,  and  (e)  Undue  Influence. 

(a)  Mistake,  when  it  appears  at  all,  makes  a  contract 
void.  Mistake  operates  in  four  classes  of  cases,  viz.: 

(1)  Mistake  as  to  the  nature  of  the  obligation; 

(2)  Mistake  as  to  the  person  contracted  with; 

(3)  Mistake  as  to  the  subject-matter    of   the    con- 

tract, either  as  to  its  existence  or  its  identity ; 

(4)  Mistake  of  one  party  as  to  the  intention  of  the 

other  party,  such  mistake  being  known  to  the 

other  party. 

As  a  general  rule  mistake  does  not  of  itself  void  an 
agreement.  If,  however,  the  mistake  is  such  as  to  pre- 
vent real  consent  the  contract  is  void  altogether  for 
there  is  no  real  agreement.  If  there  is  real  consent  and 
a  mistake  occurs  in  writing  down  the  agreement  this 
does  not  affect  the  contract  but  can  be  rectified  in  a 
Court  of  Equity. 

( 1 )  A  man  wrho  is  illiterate  or  blind  or  who  acts  from 
misplaced  confidence  without  negligence  and  signs  a 
document  of  one  sort,  being  told  that  it  is  a  document  of 
another  sort,  cannot  be  held  on  it.  His  mind  did  not 
accept  the  signature  and  therefore  in  the  eye  of  the  law 
he  had  not  made  the  contract  which  the  writing  evi- 
dences. 


18  American  Correspondence  School  of  Law. 

(2)  If  a  man  contracts  with  A  believing  that  he  is 
contracting  with  B,  A  cannot  hold  him  on  the  contract. 

(3)  If  A  and  B  make  an  agreement  in  regard  to  a 
thing  which  unknown  to  both  is  non-existent  at  the  time 
of  entering  into  the  contract,  the  mistake  goes  to  the 
root  of  the  matter  and  avoids  the  contracts,  for  there 
can  be  no  contract  where  there  is  no  subject-matter. 
Thus,  where  A  agrees  to  sell  to  B  a  certain  horse  which, 
unknown  to  both  parties  is  dead,  or  a  certain  building 
which  is  burned  down  at  the  time  of  their  making  the 
agreement,  there  is  no  contract. 

So  where  A  agrees  with  B  concerning  one  thing, 
thinking  that  B  is  referring  to  that,  while  B  agrees  with 
A  concerning  another  thing  and  thinks  that  A  refers  to 
that  other  thing,  there  is  no  contract,  for  there  is  a  mis- 
take in  the  identity  of  the  thing  contracted  for;  the 
minds  of  the  parties  never  really  meet  and  there  is  no 
true  consent.  Thus,  where  A  agreed  to  purchase  from 
B  a  lot  on  Prospect  Street  and  there  were  two  streets 
of  that  name  in  the  town,  and  A  meant  a  lot  on  one  of 
these  streets  and  B  a  lot  on  the  other,  it  was  held  that 
there  was  no  agreement.  So  where  a  seller  asked  $165 
and  the  buyer  accepted,  understanding  him  to  say  $65, 
it  was  held  that  there  was  no  contract. 

Mistake  in  motive  or  expectation  does  not,  however, 
affect  an  agreement.  Thus,  if  a  man  thinks  a  thing  is 
worth  more  than  it  really  is,  that  is  not  a  legal  mistake. 
If  a  person  purchases  a  specific  article,  believing  it  will 
answer  a  particular  purpose  to  which  he  intends  to  put 
it,  and  it  fails  to  do  so,  he  is  bound  just  the  same  to  pay 
for  it,  according  to  his  agreement. 

(4)  If  a  person  accepts  an  offer  which  he  must  have 
known  expressed  something  which  the  offerer  did  not 
intend  to  express,  the  contract  is  void. 


Law  of  Contracts.  19 

As  to  quality,  there  is  a  maxim  of  Common  Law  that 
"The  buyer  must  look  out  for  himself,"  which  with  a 
few  exceptions  is  applicable  to  every  case  of  this  kind. 
But  if  the  seller  knows  that  the  buyer  understands  his 
promise  in  a  different  sense  from  that  which  he,  the 
seller,  means,  the  contract  is  void. 

(b)  Fraud  consists  in  a  false  representation  of  fact 
made  by  one  party  to  the  contract  with  a  knowledge  of 
its  falsehood,  or  without  an  honest  belief  in  its  truth, 
with  the  intention  that  it  shall  deceive  and  be  acted  on, 
and  which  does  in  fact  deceive  the  other  party  and  in- 
duces the  contract.     Fraud  if  proved  makes  a  contract 
voidable. 

(c)  Misrepresentation  is  a  misstatement  made  inno- 
cently wrhile  in  fraud  it  is  made  knowingly  with  intent 
to  deceive.     As  a  general  rule  misrepresentation  does 
not  avoid  a  contract  in  a  Court  of  Law,  but  Courts  of 
Equity  very  early  took  a  different  view  and  if  the  rep- 
resentation were  untrue  in  fact,  and  had  been  material 
in  inducing  the  contract,  the  Courts  of  Equity  declined 
to  decree  specific  performance  to  help  a  man  "who,  hav- 
ing obtained  a  beneficial  contract  by  a  statement  which 
he  now  knows  to  be  false,  insists  on  keeping  that  con- 
tract," and  might  even  direct  the  contract  to  be  set  aside. 

(d)  Duress  consists  in  actual  violence,  or  in  threats 
to  kill  or  imprison,  or  to  do  actual  violence  either  to  the 
party  himself  or  to  his  wife,  child,  or  parent,  through 
the  fear  of  which  the  party  is  forced  to  contract.    But 
a  threat  of  imprisonment  is  not  duress  unless  the  impris- 
onment  would   be   unlawful.     Contracts   made    under 
duress  are  voidable  at  the  option  of  the  party  who  has 
been  placed  under  duress. 

(e)  Undue  Influence  exists  where  one  party,  through 
certain  circumstances  or  conditions,  is  prevented  from 


20  American  Correspondence  School  of  Law. 

resisting  the  will  of  the  other.  The  Courts  will  presume 
the  existence  of  Undue  Influence  in  cases  where  the 
party  l>enefited  stands  to  the  other  in  the  position  of 
parent  or  guardian,  or  of  solicitor,  or  of  medical  at- 
tendant, or  of  spiritual  adviser.  But  the  principle  ap- 
plies not  only  to  those  cases  but  "to  every  case  where 
influence  is  acquired  and  abused,  wrhere  confidence  is 
reposed  and  betrayed." 

The  presence  of  circumstances  of  this  sort  raises  a 
presumption  unfavorable  to  the  honesty  of  the  transac- 
tion, and  throws  on  the  party  supporting  the  transaction 
the  onus  of  rebutting  the  presumption.  Contracts  vitia- 
ted by  undue  influence  are  voidable  at  the  option  of  the 
injured  party,  but  the  contract  must  be  repudiated 
within  a  reasonable  time  after  the  undue  influence  has 
ceased. 

V. 

Legality. 

There  are  certain  things  which  the  law  forbids  as  the 
object  of  agreement  and  though  all  the  requirements  of 
the  formation  of  contracts  may  have  been  fulfilled,  the 
Courts  will  not  enforce  agreements  entered  into  with 
such  objects.  These  may  be  considered  under  three 
heads,  viz.:  (a)  Contracts  made  in  breach  of  a  statute, 
(b)  Contracts  made  in  breach  of  some  rule  of  the  com- 
mon law,  and  (c)  Contracts  contrary  to  public  policy. 

(a)  A  statute  may  interfere  in  two  ways  with  the 
validity  of  a  contract,  viz.:  (1)  By  absolute  prohibi- 
tion, in  which  case  no  doubt  can  arise  as  to  the  illegality 
of  the  contract;  and  (2)  By  the  imposition  of  a  penalty. 
In  the  latter  case,  if  the  penalty  is  intended  for  the  pro- 
tection of  the  public — e.  g.,  if  it  is  imposed  to  prevent 
the  carrying  on  of  a  trade  or  business  in  a  particular 


Law  of  Contracts.  21 

fashion  or  under  particular  conditions — a  contract  going 
against  the  provisions  of  the  statute  will  be  void.  But 
if  the  penalty  is  imposed,  not  in  the  interest  of  the  public 
but  for  the  security  of  the  revenue  only,  then  it  is  con- 
sidered that  the  contract  is  not  void,  unless  the  statute 
expressly  makes  it  illegal,  in  which  case  it  is  immaterial 
wrhether  the  statute  has  in  view  the  protection  of  the 
revenue  or  any  other  object. 

Among  the  contracts  made  illegal  by  statute  are 
wagers,  agreements  for  usury,  contracts  made  on  Sun- 
day, and  a  few  others. 

(b)  The  contracts  illegal  at  common  law  are  those 
whose  object  is  to  commit  a  crime  or  to  aid  and  abet  in 
the  commission  of  a  crime,  or  to  commit  a  civil  wrong. 
Thus,  agreements  to  libel  a  third  person  or  to  pay  a  sum 
of  money  to  another  if  he  will  beat  an  enemy  or  will 
commit  a  fraud  or  a  trespass  on  a  third  person  are 
illegal  and  void. 

(c)  The  largest  number  of  agreements  which  are 
illegal  are  so  because  they  are  considered  by  the  Courts 
as  against  public  policy.    Agreements  which  tender  to 
injure  the  public  service,  as  those  whose  object  is  to 
bribe  or  unduly  influence  a  public  officer  in  a  duty  or 
the  appointment  of  a  public  officer  or  the  freedom  of 
elections;  likewise  agreements  which  obstruct  public  jus- 
tice, as  for  example,  those  whose  object  is  to  deceive  a 
Court  or  compound  an  offense   against   the  law,   are 
against  public  policy  and  void.     So  are  agreements  to 
facilitate  divorce  or  separation  between  husband   and 
wife,  or  to  restrain  or  prevent  marriage.    So  are  agree- 
ments in  derogation  of  parental  rights,  as  for  example, 
where  a  father  agrees  to  give  up  the  control  of  his  chil- 
dren, or  agreements  to  force  a  testator  in  the  making  of 
his  will.    Another  large  class  of  contracts  void  because 


22  American  Correspondence  School  of  Law. 

against  public  policy  are  contracts  in  restraint  of  trade. 
In  the  early  Common  Law  such  agreements  were  void 
in  every  case,  but  modern  commerce  and  industry  have 
somewhat  modified  the  old  law  and  it  is  now  held  that 
contracts  for  a  partial  restraint  of  trade  are  good,  pro- 
vided such  restraint  be  reasonable  in  the  opinion  of  the 
Court. 

The  effect  of  illegality*  on  a  contract  is  general!}'  to 
make  it  void  and  a  Court  will  neither  enforce  such  an 
agreement  at  the  suit  of  the  party  to  whom  the  promise 
is  made,  nor  will  it  after  it  has  been  performed  set  it 
aside.  In  other  words,  Courts  of  Law  will  not  interfere 
to  help  either  party,  in  accordance  with  the  maxim  "In 
pari  delicto  potior  est  conditio  defendentis,"  which  being 
freely  translated  means,  "Of  two  rogues,  it  is  better  to 
be  the  defendant." 

PART  II. 

Operation  of  Contracts. 

The  obligation  arising  from  a  contract  is  of  a  limited 
nature,  and  does  not  extend  beyond  the  parties  to  the 
agreement.  A  contract  cannot  operate  so  as  to  confer 
rights  or  liabilities  upon  persons  who  are  not  parties  to 
it.  But  although  the  positive  obligation  to  perform  the 
contract  can  bind  none  but  the  parties  to  it,  there  is  an 
obligation  of  a  negative  character  cast  upon  strangers 
not  to  injure  the  parties  who  have  entered  into  a  con- 
tract by  maliciously  interfering  with  and  preventing  its 
being  carried  out. 

Third  parties,  however,  may  acquire  rights  and  as- 
sume liabilities  under  a  contract  by  being  substituted  for 
the  original  parties  to  the  agreement.  This  is  called 
"assignment."  As  a  general  rule  a  liability  cannot  be 


Law  of  Contracts.  23 

assigned  without  the  consent  of  the  other  party,  for  a 
person  entering  into  a  contract  has  a  right  to  choose  the 
one  to  whom  he  wishes  to  look  for  the  performance  of 
it.  As  to  rights,  however,  the  rule  is  different  and  the 
benefit  of  a  contract  may  now  be  assigned  so  as  to  en- 
title the  assignee  to  sue  upon  it  in  his  own  name.  This, 
while  not  true  at  Common  Law,  is  almost  universally 
true  now  by  reason  of  modern  statutes  permitting  such 
assignments.  The  effect  of  these  statutes  is  to  give  to 
the  assignee  of  a  debt  or  legal  chose  in  action  all  legal 
rights  and  remedies.  But— 

(a)  Notice  must  be  given  to  the  party  to  be  charged. 

(b)  The  title  of  the  assignee  dates  from  the  notice. 

(c)  The  assignee  takes  subject  to  equities. 

The  meaning  of  this  last  phrase  is  that  the  assignee 
takes  no  better  title  than  the  assignor  had;  in  other 
words,  he  stands  in  the  shoes  of  the  assignor,  and  if  the 
promisor  has  a  defense  against  the  assignor  he  may  set  it 
up  against  the  assignee,  except  in  the  case  of  a  negotia- 
ble instrument.  It  is  a  well  known  principle  that  the 
assignee  or  indorsee  of  a  bill  of  exchange  or  promissory 
note  may  get  a  better  title  than  his  indorser  had. 

Rights  and  liabilities  may  also  be  assigned  by  opera- 
tion of  law  quite  independent  of  the  acts  of  the  parties. 
Instances  of  this  are  found  in  assignment  by  marriage, 
by  bankruptcy,  and  by  death. 

PART  III. 

Interpretation  of  Contracts. 

When  difficulties  arising  out  of  a  contract  are  sub- 
mitted to  the  Courts  for  settlement  the  points  which 
chiefly  claim  their  attention  relate  to  (a)  how  the  terms 


24  American  Correspondence  School  of  Law, 

of  the  contract  are  proved  and  how  far  the  written  terms 
can  be  modified  by  oral  evidence,  and  (b)  what  rules 
are  to  be  applied  for  construing  the  meaning  and  effect 
of  the  agreement  whose  terms  have  thus  been  proved. 
It  is  for  the  jury  to  ascertain  the  circumstances  under 
which  the  alleged  contract  was  entered  into,  what  was 
said  or  done,  and  what  was  the  intention  of  the  parties. 
On  the  other  hand  it  is  for  the  Judge  to  determine 
whether  what  the  parties  said  and  did  amounted  to  a 
contract,  and  \vhat  is  the  effect  of  the  agreement. 

If  an  oral  contract  has  been  made  neither  of  the  par- 
ties shall  be  allowed  to  plead  that  he  did  not  mean  what 
he  said  or  what  he  conveyed  by  his  behavior.  The  same 
rule  applies  to  written  contracts.  Where  a  contract  is 
wholly  in  writing  nothing  as  a  general  rule  can  be  added 
or  varied  or  subtracted  by  parol  evidence,  because  "it 
would  be  contrary  to  the  intention  of  the  parties  to 
admit  any  other  evidence  than  the  writing  which  they 
have  agreed  to,  and  accepted  as  expressing  the  contract 
between  them."  But  oral  evidence  is  always  admissible 
to  show  that  the  contract,  whether  under  seal  or  simply 
in  writing,  is  an  invalid  one,  owing  to— 

(1)  Incapacity  of  one  or  both  the  parties;  or 

(2)  Want  of  genuine  consent;  or 

(3)  Want  of  consideration;  or 

(4)  Illegality  of  object;  or 

(5)  Through  the  non-fulfilment  of  any  of  the  neces- 
sary requirements  for  the  formation  of  contracts. 

(b)  The  construction  of  a  contract  in  writing  belongs 
to  the  Court  who  follow  these  general  rules : 

(1)  Words  are  to  be  construed  according  to  their 
ordinary  meaning,  but  subject  to  inference  of  intention 
from  the  whole  agreement. 


Law  of  Contracts.  25 

(2)  General  words  will  be  restricted  to  the  particular 
matter  in  reference  to  which  they  are  used. 

(3)  Words  susceptible  of  two  meanings  shall  be  as- 
signed that  which  will  make  the  instrument  valid. 

(4)  Words   shall  be   construed  strictly  against  the 
party  using  them. 

(5)  Exceptions  shall  be  construed  strictly. 

PART  IV. 

Discharge  of  Contracts. 

A  contract  may  be  discharged,  that  is,  put  an  end 
to,  in  the  follow  ings  ways:  (a)  By  agreement;  (b) 
By  performance;  (c)  By  impossibility  of  performance; 
(d)  By  operation  of  law,  and  (e)  By  breach. 

(a)  A  contract  may  be  discharged  by  express  mutual 
agreement  of  the  parties  that  they  shall  no  longer  be 
bound  by  it.     This  is  called  waiver  or  release.     A  con- 
tract may  also  be  discharged  by  alteration  in  its  terms, 
which  alteration  becomes  a  new  agreement  taking  the 
place  of  the  old  one.    Where  a  new  party  is,  by  agree- 
ment of  all  three,  substituted  for  one  of  the  original 
parties  this  is  called  Novation. 

A  contract  may  contain  in  itself  the  element  of  its 
own  discharge,  for  example  it  may  provide  that  it  shall 
not  bind  the  parties  if  the  conditions  subject  to  which  it 
is  made  remain  unfulfilled  or  if  a  certain  specified  event 
upon  which  it  depends  does  not  occur,  or  the  discharge 
may  depend  on  the  option  of  one  of  the  parties  if  it 
has  been  agreed  that  it  shall  be  so. 

(b)  A  contract  may  be  discharged  by  performance 
but  such  performance  must  be  in  strict  accordance  with 
its  terms.    In  the  case  of  a  sale  of  goods  the  seller  does 
not  perform  the  contract  by  delivering  a  larger  or  a 


26  American  Correspondence  School  of  Laic. 

smaller  quantity,  or  by  delivering  the  goods  mixed  with 
other  goods,  whether  the  buyer  be  or  be  not  able  to 
separate  them. 

Where  a  promise  is  to  deliver  money  then  the  contract 
is  discharged  by  payment.  A  contract  is  also  discharged 
by  tender,  which  is  an  offer  to  deliver  or  to  pay,  coupled 
with  the  capacity  to  do  so.  In  either  case  the  person 
entitled  to  performance  may  refuse  to  accept  tender,  but 
the  effect  of  this  refusal  differs  with  the  nature  of  the 
tender.  If,  in  a  case  of  tender  by  delivery,  the  buyer 
refuses  to  accept  the  goods,  the  seller  is  discharged  from 
the  contract,  and  may  either  sue  for  breach  or  defend 
successfully  an  action  in  respect  of  it.  But  in  the  case 
of  a  debt,  tender  by  the  debtor  does  not  discharge  him, 
although  it  may  be  a  good  defence  to  an  action  by  the 

creditor.     In  order  that  a  plea  of  tender  shall  be  suc- 

^  • 

cessful  in  an  action  for  breach,  it  is  not  enough  that  the 
money  has  been  tendered  and  refused.  The  debtor  must 
allege  that  he  continues  ready  and  willing  to  pay  and 
must  pay  the  money  into  Court. 

(c)  As  a  general  rule  a  party  is  not  discharged  from 
a  contract  that  he  has  made  by  reason  of  subsequent  im- 
possibility, because  in  making  the  contract  he  might  have 
guarded  himself  against  such  accidents.  A  person  who 
sells  goods  agreeing  to  deliver  them  at  a  certain  time 
cannot  plead  that  it  was  impossible  for  him  to  get  them, 
nor  can  a  person  who  agrees  to  do  a  certain  work  plead 
that  on  account  of  some  unexpected  calamity  it  has  be- 
come extremely  difficult  or  impossible  for  him  to  com- 
plete it.  The  law  says  to  parties  who  are  entering  into 
contracts,  "Don't  promise  what  you  can't  perform."  A 
man  is  not  obliged  to  promise  a  dangerous  or  an  un- 
reasonable thing,  but  if  he  does  so  he  must  carry  out 
his  agreement.  So  if  he  wishes  to  protect  himself  from 


Law  of  Contracts.  27 

the  tiling  which  he  agrees  to  do  turning  out  to  be  diffi- 
cult or  dangerous  or  unreasonable  to  do,  he  has  full 
opportunity  to  so  provide  in  his  contract,  and  if  he 
promises  unconditionally  he  will  be  bound  uncondi- 
tionally. To  this  strict  rule,  however,  there  are  three 
exceptions:  (a)  Where  the  impossibility  is  caused  by 
a  change  in  the  law;  (b)  where  the  contract  relates  to 
a  specific  thing,  and  (c)  personal  contracts. 

(a)  If  at  the  time  the  promise  was  made  it  was 
lawful  to  do  the  thing,  but  a  subsequent  statute  makes 
it  unlawful,  then  the  promise  is  discharged.     Thus,  a 
covenant  in  the  lease  of  a  wooden  building  to  rebuild 
the  same  in  case  of  fire,  was  decided  to  be  released  by 
the  subsequent  passage  of  a  municipal  ordinance  pro- 
hibiting the  erection  of  wooden  buildings  in  that  locality. 

(b)  When  the  contract  relates  to  a  specific  thing  it  is 
considered  subject  to  the  implied  condition  of  the  con- 
tinued existence  of  the  thing,  so  that  if  the  thing  per- 
ishes without  the  fault  of  either  party  the  contract  is  at 
an  end.    Thus,  where  A  agreed  to  let  his  hall  to  B  for 
a  public  entertainment  and  before  the  date  of  the  enter- 
tainment the  hall  was  destroyed  by  an  accidental  fire, 
this  was  held  to  discharge  both  parties. 

(c)  Contracts  for  personal  services  are  discharged  by 
the  death  of  the  promisor  or  his  incapacity  through 
illness.    Thus,  if  an  eminent  player  contracts  to  perform 
at  a  concert,  or  an  artist  to  paint  a  picture,  if  either  is 
incapacitated  by  illness  or  death,  this  is  a  good  defense, 
for  no  deputy  could  perform  for  him,  nor  in  case  of 
death  could  his  executor. 

(d)  By  the  operation  of  certain  rules  of  law  certain 
contracts  are  discharged.     This  occurs  in  case  of   (1) 
Merger;     (2)    Alteration   of  written  instrument;    (3) 
Bankruptcy,  and  (4)  Death. 


28  American  Correspondence  School  of  Law. 

(1)  When  a  simple  contract  has  been  entered  into 
and  has  been  followed  by  a  contract  under  seal  between 
the  same  parties  on  the  same  subject-matter  and  em- 
bodying the  same  terms  the  simple  contract  is  merged 
in  the  contract  under  seal.     On  the  same  principle  a 
lower  security  is  merged  in  a  higher  one. 

(2)  If  a  written  contract  be  materially  altered  with- 
out the  consent  of  all  the  parties  to  it  it  is  discharged, 
but  the  alteration  must  have  been  made  by  a  party  to 
the  contract  or  with  his  consent  and  the  alteration  must 
be  a  material  one. 

The  loss  of  a  written  instrument  does  not  affect  the 
rights  of  the  parties  as  long  as  it  can  be  proved  that  the 
instrument  did  exist. 

(3)  When  a  bankrupt  has  obtained  an  Order  of  Dis- 
charge from  the  Court  it  releases  him  from  all  his  debts 
provable  under  the  bankruptcy  act. 

(e)  If  one  of  the  parties  breaks  the  contract  the  other 
party  has  always  a  right  of  action  against  him  for  dam- 
ages, and  if  the  contract  be  capable  of  specific  perform- 
ance, a  right  to  obtain  a  decree  for  specific  performance. 
But  it  is  not  in  every  case  that  breach  will  discharge  the 
party  injured,  that  is  to  say,  will  entitle  him  to  treat 
the  legal  relations  arising  from  the  contract  as  having 
come  to  an  end.  A  contract  may  be  broken  in  three 
ways,  viz. :  By  the  person  who  is  to  perform  refusing  to 
perform,  or  by  his  making  performance  impossible,  or 
by  his  simply  failing  to  perform.  If  he  refuses  to  per- 
form the  other  party  may  bring  an  action  at  once  with- 
out waiting  for  the  time  to  arrive  when  performance  is 
to  take  place,  and  the  same  is  so  when  he  makes  it  impos- 
sible that  he  will  perform.  Thus,  in  one  case  the  de- 
fendant engaged  the  plaintiff  as  a  courier  at  $100  a 
month,  the  service  beginning  on  1st  of  June.  Before 


Law  of  Contracts.  29 

that  day  he  informed  the  plaintiff  that  he  should  not 
require  him,  and  before  that  day  the  plaintiff  brought 
suit.  It  was  held  that  the  plaintiff's  right  of  action 
accrued  immediately  on  the  receipt  of  the  explicit  re- 
nunciation, and  that  he  was  not  bound  to  wait  till  June 
1st.  In  another  case  A  promised  to  marry  B  on  the  10th 
of  May  and  on  the  1st  of  April  he  married  C.  It  was 
held  that  A  having  made  it  impossible  for  him  to  per- 
form his  contract,  B  could  immediately  bring  her  action 
and  need  not  wait  until  the  10th  of  May. 

Where  the  party  simply  fails  to  carry  out  what  he 
agreed  to  do  and  yet  the  contract  is  not  thereby  made 
incapable  of  performance  and  he  does  not  decline  to  go 
on,  the  question  as  to  whether  the  other  is  entitled  to 
treat  himself  as  discharged  or  must  content  himself  with 
performing  on  his  side  and  claiming  damages  for  the 
breach,  is  one  which  depends  on  whether  the  promises 
were  independent  or  dependent.  If  they  were  inde- 
pendent non-performance  by  one  will  not  release  the 
other.  The  Courts,  however,  when  each  promise  forms 
the  consideration  for  the  other  will  construe  the  prom- 
ises to  be  dependent,  unless  it  is  clear  that  the  parties 
intended  them  to  be  independent. 

Conclusion. 

Every  breach  of  a  contract  entitles  the  injured  party 
to  damages,  though  they  be  but  nominal  in  amount  and 
sometimes  a  Court  of  Equity  will  decree  specific  per- 
formance, that  is  compel  the  party  to  carry  out  his 
agreement,  but  the  right  of  action  for  damages  and  the 
cases  where  specific  performance  will  be  granted  are 
regulated  by  the  Law  of  Procedure,  which  is  beyond  the 
scope  of  my  subject. 


PAMPHLET  BINDER 
Syrocu»«,  N.  Y. 
Stockton,  Calif. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


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